In its final court filing before oral arguments scheduled for next week, Apple argued that the government’s interpretation of an obscure 18th-Century law goes too far, and it should not be able to authorize the forced creation of a customized iOS firmware to aid in the opening of a seized iPhone linked to a 2015 terrorist attack.

In a Tuesday call with reporters, Apple lawyers said that this case is serious and has profound implications. The company largely re-iterated many of its previous arguments in earlier filings, ending with this conclusion:

The government’s position has sweeping implications. Under the government’s view, the state could force an artist to paint a poster, a singer to perform a song, or an author to write a book, so long as its purpose was to achieve some permissible end, whether increasing military enrollment or promoting public health.

Last month, the government obtained an unprecedented court order under the All Writs Act, an obscure 18th-Century statute, which would compel Apple to assist in the government's investigation. If the order stands up to legal challenges, Apple would be forced to create a new customized iOS firmware that would remove the passcode lockout on the phone. Apple has said both publicly and in court filings that it will fight the order as much as possible, and the company has drawn support from many cryptographers, tech companies, and even the husband of a survivor of the attack.

New York, New York

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The seized iPhone 5C in question belonged to the San Bernardino County Health Department, but was given to and used by terrorist Syed Rizwan Farook before the December 2, 2015 attack in San Bernardino, California. The phone, which is running iOS 9, has a four-digit passcode enabled on it. The government is afraid that it won't be able to access the phone if Apple doesn’t create this new firmware to remove a possible 10-passcode lockout feature.

Last month, Apple put forward its first formal legal arguments, based on a rejection of a 1977 Supreme Court decisionUnited States v. New York Telephone, the prominent case that relies on the All Writs Act in which the authorities were demanding the utility to implement a pen register trap and trace device. New YorkTelephone has a "three factor" test. Those factors include the company's distance, or "remove" from the case; whether the government's request places an "undue burden" on Apple; and whether the company's assistance was "necessary."

In the new Tuesday filing, Apple underscores that what the government is asking for is entirely unprecedented. While Apple does have the capacity to comply, the company says that the All Writs Act doesn’t mean what the Department of Justice claims that it means. While that law does allow courts to issue “writs,” or orders, that would compel a person or a company to do something, that ability isn’t without limits.

The government seeks an order here that is neither grounded in the common law nor authorized by statute. Indeed, the government has not pointed to any writ available at common law that would require a private non-party to perform burdensome forensics work, create new software, or compel speech to assist law enforcement.

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The government nevertheless contends that because this Court issued a valid search warrant, it can order innocent third parties to provide any service the government deems “necessary” or “appropriate” to accomplish the search. Opp. 5. But that “broad” and “flexible” theory of the All Writs Act has no limiting principle. See Ivey, 47 F.3d at 185 (considering several “hypothetical parallel[s]” showing that petitioner’s reading of the Act would allow the court to issue any number of orders not allowed at common law). Indeed, it is telling that the government fails even to confront the hypotheticals posed to it (e.g., compelling a pharmaceutical company to manufacture lethal injection drugs, Dkt. 16 (“Mot.”) at 26), or explain how there is any conceivable daylight between GovtOS today, and LocationTrackingOS and EavesdropOS tomorrow.

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The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private electronic signature. Opp. 22 n.9. The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless disregard of the technology at issue and the security risks implicated by its suggestion.

Attorneys for Apple also addressed head-on the implication that the company has somehow made special accommodations for China. “Apple uses the same security protocols everywhere in the world and follows the same standards for responding to law enforcement requests,” Theodore Boutrous, one of Apple’s top lawyers, wrote.

Federal prosecutors and Apple attorneys are set to square off in federal court in Riverside, California on March 22. Ars will be present at that hearing.